The filing comes as the Authors Guild’s case against Google is prepped for its turn in front of the Second Circuit, just weeks after the same appeals court emphatically affirmed Judge Harold Baer’s October 2012 fair use finding in the Guild’s parallel case, Authors Guild vs. HathiTrust. In the HathiTrust case, the Authors Guild had sued a coalition of Google's library book scanning partners on much the same charges it had lodged against Google: basically that the project is built on millions of unauthorized copies. But in his opinion, Baer wrote that he could not imagine “a definition of fair use” that would compel him to shut down the project, calling it an “invaluable contribution to the progress of science and cultivation of the arts.”

However, in affirming Baer’s 2012 ruling, the Second Circuit held out a ray of hope for the Authors Guild in its Google case, by noting that it was "important" that HathiTrust did not display any of the work made available for searching—in other words, no snippets.

In their filing last week, attorneys for Google sought to snuff that ray of hope, devoting a sizable portion of their brief to defending snippets. In a detailed explanation, Google attorneys argue that snippets help users “narrow a search” by directing them to books “actually relevant” to their needs, without acting “as a substitute for the books.”

Each snippet represents "only about one-eighth of a page in length," Google attorneys note, just long enough to "provide context" and to show a user how their search term appears in a given book. And, to “ensure users cannot read or copy any significant amount of a book,” Google restricts the display of snippets in several ways.

For example, among the restrictions, is that no more than three snippets are displayed in response to a given query. Snippets are also "fixed," so that a user cannot summon the next snippet by searching for a term that appears near the end of the previous one. And Google “blacklists” large sections of each scan, making at least one snippet per page unavailable for viewing, and blocking out one page of every ten, per book.

In addition, snippet view is not available for works where "even a small snippet could potentially substitute" for a reader accessing the book itself. For example, reference works like dictionaries or cookbooks, or books of short poems are not included in snippet view (unless the rights holder requests to be included). In addition, a rights holder of any work can exclude a book from both search and snippet view by filling out an online form.

Further, Google does not generate advertising revenue against snippets, the brief acknowledges, even for books in the partner program. In a footnote, Google attorneys note that "revenue was so low that Google decided to remove advertisements from the Partner Program in 2011," and phased them out completely by early 2012.

And, Google argues that snippets are in fact part of what makes its book search transformative. Google claims the service enables readers to search better. "A search for all books that mention ‘Archimedes’ may yield tens of thousands of books," the brief notes. But "a user interested only in Archimedes’ explanation of levers could use snippets to identify those that are most relevant."

Google also defended its commercial status, arguing that its for-profit motives do not limit its exercise of fair use. This was a point Chin agreed with in his ruling. While Google's commercial status is "a consideration to be acknowledged," Chin wrote, the book scanning project also serves "several important educational purposes."

The "heart" of the Authors Guild position is that "if the Google Books search tool were enjoined, someone else would create a similar tool and pay royalties to copyright owners,” the Google brief states. “But this aspiration is unsupported by evidence, factually implausible, and legally irrelevant. There is no reason to believe any creator of a search tool would pay authors for the privilege of helping readers find their published books or that authors would refuse inclusion unless paid.”

PW has integrated its print and digital subscriptions, offering exciting new benefits to subscribers, who are now entitled to both the print edition and the digital editions of PW (online or via our app). For instructions on how to set up your accout for digital access, click here. For more information, click here.

The part of the site you are trying to access is now available to subscribers only. Subscribers: to set up your digital subscription with the new system (if you have not done so already), click here. To subscribe, click here.

Thank you for visiting Publishers Weekly. There are 3 possible reasons you were unable to login and get access our premium online pages.

You are NOT a current subscriber to Publishers Weekly magazine. To get immediate access to all of our Premium Digital Content try a monthly subscription for as little as $18.95 per month. You may cancel at any time with no questions asked. Click here for details about Publishers Weekly’s monthly subscription plans.

You are a subscriber but you have not yet set up your account for premium online access.Add your preferred email address and password to your account.

You forgot your password and you need to retrieve it. Click here to access the password we have on file for you.